Citation Nr: 0429021
Decision Date: 10/21/04 Archive Date: 10/28/04
DOCKET NO. 00-05 404 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to a compensable rating for first-degree AV
(atrioventricular) block, based on an initial award.
2. Entitlement to a compensable rating for bilateral hearing
loss, based on an initial award.
3. Entitlement to a rating in excess of 30 percent for anal
fissure, with sphincterotomy, based on an initial award.
4. Entitlement to a compensable rating for left renal
calculus, based on an initial award.
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty from March 1972 to March
1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Washington,
D.C., and Pittsburgh, Pennsylvania. The veteran resides in
Europe and his case is currently being handled by the RO in
Pittsburgh, to where this case will be returned.
In April 2003, the Board remanded the case to the RO for
additional development and readjudication. At that time, the
issues also included service connection for nasal obstruction
and hypertension. Following completion of the directives in
the remand, the RO, in a rating decision dated in July 2004,
granted the veteran entitlement to service connection for
nasal obstruction and hypertension, effective from April
1998, the day following the date of the veteran's separation
from active military service. The award of service
connection for nasal obstruction and hypertension consists of
a full award of benefits on those issues. See Holland v.
Gober, 10 Vet. App. 433, 436 (1997). The case is again
before the Board; however, at this time, the only issues for
appellate review are the initial ratings assigned the
disabilities to which the veteran has expressed his
dissatisfaction.
FINDINGS OF FACT
1. The VA's duty to assist the veteran in developing all
evidence pertinent to the claim has been met.
2. A first-degree AV block, although shown in the service
medical records, is noted by history in subsequent post-
service medical evaluations and has not had an impact on
cardiac function.
3. Both prior and subsequent to June 10, 1999, the effective
date of the change in hearing impairment rating criteria,
audiology evaluation findings compute to level I hearing loss
in both ears.
4. Anal fissure, with sphincterotomy, is manifested by
occasional leakage necessitating the wearing of a pad.
5. Left renal calculus is manifested by dull flank pain, but
less colicky type pain, without the need for catheter
drainage.
CONCLUSIONS OF LAW
1. The criteria for a compensable rating for first-degree AV
block, since the effective date of the grant of service
connection, have not been met. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.321, 3.326(a), 4.1-4.3, 4.7, 4.10, 4.104 Diagnostic
Code 7015 (2003).
2. The criteria for a compensable rating for bilateral
hearing loss, since the effective date of the grant of
service connection, under either the prior or current amended
regulations, have not been met. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a), 4.85, 4.86, 4.87 Diagnostic Code 6100 (1998
& 2003).
3. The criteria for a disability rating in excess of 30
percent for anal fissure, with sphincterotomy, since the
effective date of the grant of service connection, under
either the prior or current amended regulations, have not
been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a),
4.1-4.3, 4.7, 4.10, 4.114 Diagnostic Code 7332 (2003).
4. The criteria for a 10 percent rating for left renal
calculus, since the effective date of the grant of service
connection, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.321, 3.326(a), 4.1-4.3, 4.7, 4.10, 4.115b Diagnostic Code
7508 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that the Veterans Claims Assistance Act of
2000 (VCAA) is applicable in this case. The Act and
implementing regulations essentially provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim and also includes new notification
provisions.
In the recently decided case of Pelegrini v. Principi, 18
Vet. App. 112 (2004), referred to as Pelegrini II, the United
States Court of Appeals for Veterans Claims (Court)
essentially held that VA must provide notice "upon receipt"
and "when" mandated that notice precede an initial
unfavorable AOJ (agency of original jurisdiction) decision on
a service-connection claim. For the reasons enumerated
below, there is no indication that there is any prejudice to
the veteran by the order of the events in this case, see
Bernard v. Brown, 4 Vet. App. 384 (1993), and there has been
full compliance with the VCAA, and all other legal precedents
applicable to the claim. See Pelegrini II. Under the facts
of this case, the Board finds that the record has been fully
developed, and it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his claim.
See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
In the case at hand, the veteran retired from military
service in March 1998. VA received his claim in April 1998
and the initial determination was made in May 1998; both of
which occurred many years before the VCAA was enacted. In
April 2003, the Board remanded the case for, among other
things, full compliance with the pertinent provisions of the
VCAA. By VA letter of May 2003, the veteran was informed of
the VCAA, which also advised him of the development actions
required by the statute, and a supplemental statement of the
case, issued in July 2004, advised him of the law and
regulations affecting his claim, to include the pertinent
provisions of the VCAA. See Charles v. Principi, 16 Vet.
App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). Hence, there has been substantial
compliance with Pelegrini II in that the appellant has
received the VCAA content-complying notice and there has been
proper subsequent VA process. See Pelegrini II.
Increased Rating-general provisions
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities. The percentage
ratings represent, as far as can practicably be determined,
the average impairment in earning capacity resulting from
such diseases and injuries and their residual conditions in
civil occupations. Individual disabilities are assigned
separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R.
§ 4.1, Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. See 38 C.F.R. § 4.7. Any reasonable doubt
regarding a degree of disability will be resolved in favor of
the veteran. See 38 C.F.R. § 4.3.
It is essential, both in the examination and in the
evaluation of disability, that each disability be reviewed in
relation to its history. See 38 C.F.R. § 4.41. Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However,
where the question for consideration is propriety of the
initial evaluation assigned, as it is in this case,
evaluation of the medical evidence since the grant of service
connection and consideration of the appropriateness of
"staged rating" is required. See Fenderson, 12 Vet.
App. at 126.
A. First-degree AV Block
Review of the veteran's service medical records shows that a
July 1991 electrocardiogram (EKG) revealed a first-degree AV
(atrioventricular) block. On routine examination in August
1991, the AV block was asymptomatic. Subsequent EKG's
confirmed the presence of a first-degree AV block.
The report of the veteran's June 1999 VA fee basis
examination noted normal cardiac dullness. Chest x-ray
revealed normal cardio-pulmonary; no infiltrative processes
or pleural effusions; no evidence of congestion; bilateral
hili were regularly configured; and the heart and vessels
were unremarkable. A history of AV block was noted.
Examination revealed regular heart action without attendant
murmurs; no edema; and no pulmonary distress at rest and on
exertion. EKG at rest revealed first-degree AV block with
unremarkable repolarisation. Stress test EKG revealed no
extra systolies or any changes of the repolarisation; and no
AV block was seen nor were there any subjective complaints.
The report of the veteran's June 2004 VA fee basis
examination revealed that the heart was within normal limits
and there was no evidence of any heart disease. There were
normal rhythm, clear heart sounds, and no clinically
significant murmur. The results of EKG's, both at rest and
on stress test, were normal, with an EF (ejection fraction)
of 70 percent. There was good physical capacity and the METs
(metabolic equivalent) based on stress test was over 10 METS.
There was dyspnea present at the end of the stress test;
however, fatigue, angina, dizziness, or syncope did not come
up on/after exertion. The diagnoses were no enlargement of
the heart; no evidence of acute or chronic cardiac disorder;
over 10 METS (within normal limits); and an EF of 70 percent
(within normal limits).
Analysis
The veteran's first-degree AV block is evaluated under the
criteria for rating diseases of the heart in VA's Schedule
for Rating Disabilities; specifically, under Diagnostic Code
7015, atrioventricular block. See 38 C.F.R. § 4.104.
Diagnostic Code 7015 provides that an AV block manifested in
a workload of greater than 7 METs, but not greater than 10
METs, resulting in dyspnea, fatigue, angina, dizziness, or
syncope; or continuous medication or a pacemaker is required,
warrants a 10 percent rating. If an AV block is manifested
in a workload of greater than 5 METs, but no greater than 7
METs, resulting in dyspnea, fatigue, angina, dizziness, or
syncope; or evidence of cardiac hypertrophy or dilation on
electrocardiogram, echocardiogram, or x-ray, warrants a 30
percent rating. AV block manifested by more than one episode
of acute congestive heart failure in the past year; or
workload of greater than 3 METs, but not greater than 5 METs
resulting in dyspnea, fatigue, angina, dizziness, or syncope;
or left ventricular dysfunction with an ejection fraction of
30 to 50 percent, warrants a 60 percent rating. Av block
with chronic congestive heart failure; or workload of 3 METs,
or less, resulting in dyspnea, fatigue, angina, dizziness, or
syncope; or left ventricular dysfunction with an ejection
fraction of less than 30 percent warrants a 100 percent
rating. Id.
The above-mentioned diagnostic code does not provide for a
zero percent evaluation. However, in every instance where
the schedule does not so provide, a zero percent evaluation
shall be assigned when the requirements for a compensable
evaluation are not met. See 38 C.F.R. § 4.31.
In the veteran's case, his AV block is appropriately rated
noncompensably disabling. Although medical evidence shows
symptoms of AV block in service, medical evaluations,
including EKG's, did not show the presence of AV block. The
disorder was noted by history in both the June 1999 and June
2004 VA fee based examinations. On most recent examination,
cardiac evaluation noted no heart enlargement, no evidence of
chronic or acute cardiac disorder, over 10 METS (within
normal limits) and EF of 70 percent (within normal limits).
Hence, any AV block present does not appear to have any
impairment on cardiovascular function. In the absence of
medical evidence showing greater severity, the medical
evidence does not provide the basis for granting the
disability a compensable rating.
The Board also finds that no higher evaluation can be
assigned pursuant to any other potentially applicable
diagnostic code. Because there is a specific diagnostic code
to evaluate the veteran's AV block, consideration of other
diagnostic codes for evaluating the disability does not
appear appropriate. See 38 C.F.R. § 4.20 (permitting
evaluation, by analogy, where the rating schedule does not
provide a specific diagnostic code to rate the disability).
See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that
the Board's choice of diagnostic code should be upheld so
long as it is supported by explanation and evidence).
B. Hearing Loss
The report of the veteran's service medical records show
decreased hearing during active duty. The report of his
retirement physician examination, dated in March 1998,
revealed impaired hearing for VA purposes. See 38 C.F.R.
§ 3.385.
The veteran's initial post-service VA fee basis audiology
examination, dated in June 1999, revealed the following
puretone thresholds, in decibels:
HERTZ
1000
2000
3000
4000
AVG
RIGHT
10
15
65
65
38.75
LEFT
15
15
35
70
33.75
The speech discrimination ability was 94 percent in the right
ear and 96 percent in the left ear. The examination was
conducted by an audiologist; the scores were obtained by
using a controlled speech discrimination test (Maryland CNC)
and a puretone audiometry test. The diagnosis was bilateral
hearing loss with a paroxysmal tinnitus.
The veteran underwent VA fee basis audiology examination in
June 2004, with essentially similar findings as noted in the
above-mentioned audiology evaluation. The June 2004
audiology report notes mild bilateral sensorineural hearing
loss with no suspicion of noise induced hearing loss. Speech
recognition testing was 100 percent at 65dB; and 83 percent
at 55 dB, in the right ear and 100 percent in the left ear at
both at 65d Band 55 dB. The pertinent diagnosis was mild
sensorineural hearing loss.
Analysis
The Board notes that, during the pendency of this appeal,
regulatory changes amended VA's Schedule for Rating
Disabilities, see 38 C.F.R. Part 4 (1998), including the
rating criteria for evaluating diseases of the ear. This
amendment was effective June 10, 1999. See 64 Fed. Reg.
25,202 through 25,210 (May 11, 1999). When a law or
regulation changes after a claim has been filed, but before
the administrative appeal process has been concluded, VA must
apply the regulatory version that is more favorable to the
appellant. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991). Therefore, the Board must evaluate the veteran's
claim for a compensable rating for his bilateral hearing loss
under both the old criteria in VA's Schedule for Rating
Disabilities and the current regulations, applying the more
favorable result, if any.
At the time the veteran filed his claim, evaluations of
hearing loss ranged from noncompensable to 100 percent, which
were based on organic impairment of hearing acuity, as
measured by the results of controlled speech discrimination
tests, together with average hearing threshold levels, as
measured by pure tone audiometry tests in the frequencies
1000, 2000, 3000 and 4000 cycles per second (Hertz). To
evaluate the degree of disability from defective hearing, the
rating schedule established eleven auditory acuity levels
designated from level I, for essentially normal acuity,
through level XI, for profound deafness. See 38 C.F.R. 4.87,
Diagnostic Codes 6100 to 6110 (1998).
As mentioned above, the criteria for rating diseases of the
ear (and other sense organs) were amended effective June 10,
1999. However, while the above noted schedular criteria for
rating hearing loss (i.e. those that establish the eleven
auditory acuity levels) have not changed and currently are
located at 38 C.F.R. § 4.85, Diagnostic Code 6100 (2003), the
June 1999 amendment adds the provisions of 38 C.F.R. § 4.86
for evaluating exceptional patterns of hearing impairment.
38 C.F.R. § 4.86(a) provides that, when the puretone
threshold at each of the four specified frequencies (1000,
2000, 3000, and 4000 Hz) is 55 decibels or more, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher Roman numeral. Each ear will
be evaluated separately.
38 C.F.R. § 4.86(b) provides that, when the puretone
threshold is 30 decibels or less at 1000 Hertz and 70
decibels or more at 2000 Hertz, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately.
Table VI
Numeric designation of hearing impairment based on puretone
threshold average and speech discrimination.
% of
discri
m-
inatio
n
Puretone Threshold Average
0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV
84-90
II
II
II
III
III
III
IV
IV
IV
76-82
III
III
IV
IV
IV
V
V
V
V
68-74
IV
IV
V
V
VI
VI
VII
VII
VII
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI
Applying the relevant law and regulations in the veteran's
case, the Board notes that the audiology examination was
conducted prior to the amended changes to the regulation,
hence, the old version will be applied prior to the effective
date of the amended regulation and both the old and revised
criteria will be applied to the examination results,
effective from the date of the amended regulation, with the
most favorable applied, if any.
The results of the veteran's June 1999 VA fee based audiology
examination revealed that the average puretone decibel for
the right ear was 38; speech discrimination was 94 percent.
By intersecting the column in Table VI for average puretone
decibel loss with the line for percent of discrimination, the
resulting Roman numeric designation for the right ear is I.
The same examination report shows that the average puretone
decibel loss for the veteran's left ear was 33; speech
discrimination was 96 percent. By intersecting the column in
Table VI for average puretone decibel loss with the line for
percent of discrimination, the resulting Roman numeric
designation for the left ear is I.
The results of the veteran's June 2004 VA fee basis audiology
evaluation reported similar results, which, likewise,
correlate to Roman numeric designation of I for each ear in
Table VI.
Reference is then required to Table VII for assignment of a
percentage evaluation and assignment of a diagnostic code.
With a Roman numeric designation of I for the better ear and
I for the poorer ear, the point of intersection on Table VII
requires a noncompensable evaluation under Diagnostic Code
6100.
Table VII
Percentage evaluation for hearing impairment
(Diagnostic Code 6100)
Poorer Ear
Better
Ear
XI
100
X
90
80
IX
80
70
60
VIII
70
60
50
50
VII
60
60
50
40
40
VI
50
50
40
40
30
30
V
40
40
40
30
30
20
20
IV
30
30
30
20
20
20
10
10
III
20
20
20
20
20
10
10
10
0
II
10
10
10
10
10
10
10
0
0
0
I
10
10
0
0
0
0
0
0
0
0
0
XI
X
IX
VIII
VII
VI
V
IV
III
II
I
As explained above, the revised criteria for rating hearing
loss also includes analysis under 38 C.F.R. § 4.86 which,
unlike the former criteria, calls for the use of Table VIa at
certain times, when that Table would result in a higher Roman
numeral designation. Here, however, the puretone thresholds
reported on the June 1999 and June 2004 VA fee based
audiology examinations do not meet the criteria for
application of Table VIa.
In view of the foregoing, the Board must conclude that,
regardless of whether the veteran's bilateral hearing loss is
evaluated under the former or the revised criteria, a
noncompensable evaluation, and no higher, is entirely
appropriate for his bilateral hearing loss.
In determining whether a higher rating is warranted for a
disease or disability, VA must determine whether the evidence
supports the veteran's claim or is in relative equipoise,
with the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. See 38 U.S.C.A. § 5107(a) (West
1991); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Board is cognizant of the diagnoses rendered at the
conclusion of the veteran's May 1997 VA audiology
examination; however, although the Board sympathizes with the
veteran's difficulties due to hearing loss, the Board is
constrained to abide by VA regulations. Disability ratings
in hearing loss cases are assigned by way of a mechanical
application of the average puretone thresholds and speech
discrimination percentages to the tables furnished in the
rating schedule. See Lendenmann v. Principi, 3 Vet. App.
345, 349 (1992). In light of the above, the Board finds that
an initial noncompensable rating for bilateral hearing loss
is entirely appropriate and fully comports with the
applicable schedular criteria.
C. Anal Fissure
Review of the veteran's service medical records show that he
was seen for anal fissure and underwent a sphincterotomy.
The report of his initial post-service VA fee basis
examination, dated in June 1999, notes a complaints of pain
and itch, with discharge of blood or mucus. He was using no
medication. On examination, an anal fissure, with
inflammatory irritation was found. There was no bleeding.
The sphincter tightens not truly up after defecation, with
leakage for up to twenty minutes thereafter.
The report of the veteran's June 2004 VA fee based
examination notes impaired sphincter control. There is
involuntary leakage and the veteran wears a guarding pad,
which he changes at least once during every day. On
examination, the sphincter did not close and tighten
completely; an anal fissure was revealed, with chronic
inflammatory irritation, slight swelling and chronic itch.
About twice per month, there were blood traces with the
stool. There were no signs of anemia, no current evidence of
bleeding, and no hemorrhoids present.
Analysis
The veteran's service-connected anal fissure, with
sphincterotomy, is rated under the criteria pertaining to
diseases of the digestive system. See 38 C.F.R. § 4.114.
The Board notes that the regulatory criteria for the
evaluation of diseases of the digestive system were amended
during the veteran's appeal, effective July 2, 2001. See
Karnas, 1 Vet. App. at 312-13. In this case, the changes do
not significantly affect the veteran's case and essentially
leave the application of the provisions of Diagnostic Code
7332 unchanged. Accordingly, the Board finds that the
veteran will not be prejudiced by the Board's election in
this decision to consider his claim solely based on the new
criteria. See Karnas, supra; Bernard v. Brown, 4 Vet. App.
384, 394 (1993).
Under Diagnostic Code 7332, a 30 percent rating is warranted
for impairment of the rectal and anal sphincter that is
manifested by occasional involuntary bowel movements,
necessitating wearing of a pad. A 60 percent rating is
warranted if there is extensive leakage and fairly frequent
involuntary bowel movements. A 100 percent rating is
warranted for complete loss of sphincter control. See
38 C.F.R. § 4.114.
In the veteran's case, his anal fissure, with sphincterotomy,
is appropriately rated as 30 percent disabling. Medical
evidence has consistently shown occasional involuntary
leakage necessitating wearing a pad, which needs to be
changed at least once during the course of a day. However,
in the absence of greater severity, such as extensive leakage
and fairly frequent involuntary bowel movement, or complete
loss of sphincter control, no more than a 30 percent rating
is warranted and fully comports with the applicable schedular
criteria.
The Board also finds that no higher evaluation can be
assigned for an impairment of rectum and anus sphincter
control pursuant to any other potentially applicable
diagnostic code. There is a specific diagnostic code to
evaluate the veteran's rectum and anus condition, hence,
consideration of other diagnostic codes for evaluating the
disability does not appear appropriate. See 38 C.F.R.
§ 4.20; see also Butts, 5 Vet. App. at 539.
D. Renal Calculus
Review of the veteran's service medical records show that he
was treated for a left renal stone in early 1998, by
extracorporeal shock wave lithotripsy. There was good stone
fragmentation, some of which passed. On follow-up treatment
a few months later, there was still a fragment left, however,
the veteran was asymptomatic.
The report of the veteran's June 1999 VA fee based
examination notes, following abdominal ultrasound
examination, a parapelvine cyst on the right kidney but no
evidence of urolithiasis.
The report of the veteran's June 2004 VA fee based
examination notes that, in 2000, he had been hospitalized
twice because of renal colic pain secondary to renal calculi.
The last time, he underwent two stent implantation into the
urethra. The first hospital stay lasted two-to three weeks.
Shortly thereafter, he re-entered the hospital for another
two weeks for further fragmentation discharges. The stents
were subsequently surgically removed and he has had no
recurrent urinary tract infections, but he has had recurrent
dull flank pain, but less colicky type pain. There was no
history of bladder stones or bladder complaints. Recently,
he has been on an anti-diabetic, low-fat and low-calories
diet. He had had no regular kidney checks or blood tests
done within the past twelve months.
Analysis
The veteran's left renal calculus is rated under diseases of
the genitourinary system. See 38 C.F.R. § 4.115b. Under
Diagnostic Code 7508, nephrolithiasis is rated as
hydronephrosis, except for recurrent stone formation
requiring one or more of the following: a) diet therapy; 2)
drug therapy; or 3) invasive or non-invasive procedures more
than two time per year.
The medical evidence shows that the veteran is not on a diet
because of his renal calculus. He is not taking medication
for the disability. Although he had two stent implantations
into the urethra in 2000, which were subsequently
surgerically removed, he has not had any further invasive or
non-invasive procedures done since that time. He has not
been subsequently hospitalized for renal calculus.
Under Diagnostic code 7509, hydronephrosis, with only an
occasional attack of colic, which was not infected and was
not requiring catheter drainage, warrants a 10 percent
rating. If there are frequent attacks of colic, requiring
catheter drainage, a 20 percent rating is warranted.
Frequent attacks of colic with infection and kidney function
is impaired, warrants a 30 percent rating. If the
hydronephrosis is severe, than the disability is rated as
renal dysfunction. See 38 C.F.R. § 4.115b.
The above-mentioned diagnostic code does not provide for a
zero percent evaluation. However, in every instance where
the schedule does not so provide, a zero percent evaluation
shall be assigned when the requirements for a compensable
evaluation are not met. See 38 C.F.R. § 4.31.
The medical evidence shows that, since 2000, the veteran has
experienced he has had recurrent dull flank pain, but less
colicky type pain. He has not been hospitalized since that
time for any urinary type disease. Catheterization and
dilation has not been needed. Recent ultrasound did not show
any renal stones present. Under the circumstances, we find
that the veteran's complaints of dull flank pain, but less
colicky type pain, are compatible with the criteria for a 10
percent rating (only an occasional attack of colic, which was
not infected and was not requiring catheter drainage). While
he described less colicky type pain, he did not indicate the
absence of colic, no matter how mild. In the absence of
medical evidence of greater severity (that is, necessity of
catheter drainage), a 10 percent rating for the veteran's
left renal calculus disability is entirely appropriate and
fully comports with the applicable schedular criteria.
The Board also finds that no higher evaluation can be
assigned for left renal calculus pursuant to any other
potentially applicable diagnostic code. Because there are
specific diagnostic codes to evaluate the veteran's left
renal calculus, consideration of other diagnostic codes for
evaluating the disability does not appear appropriate. See
38 C.F.R. § 4.20; see also Butts, 5 Vet. App. at 539.
Summary
The above discussion is based on consideration of pertinent
provisions of the VA's Schedule for Rating Disabilities.
Additionally, the Board notes that there is no indication
that the schedular criteria are inadequate to evaluate the
veteran's disabilities currently under consideration at any
stage under consideration. It should be remembered that,
generally, the degrees of disability specified under the
rating schedule are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. See 38 C.F.R. § 4.1. Under the
circumstances, the Board is not required to remand this
matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App.
337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In reaching this decision, the Board has considered the
appropriateness of the initial ratings for the veteran's
disabilities currently under consideration under the
applicable criteria in conjunction with the submission of
additional evidence at various times while the appeal was
pending. Likewise, the Board notes that the RO has
effectively considered the appropriateness of its initial
evaluations under the applicable rating criteria in
conjunction with the submission of additional evidence at
various times while the appeal was pending. See Fenderson,
12 Vet. App. at 126.
ORDER
As the assignment of a noncompensable rating since the grant
of service connection for first-degree AV block was proper, a
compensable rating is denied.
As the assignment of a noncompensable rating since the grant
of service connection for bilateral hearing loss was proper,
a compensable rating is denied.
As the assignment of a 30 percent rating since the grant of
service connection for anal fissure, with sphincterotomy, was
proper, a higher rating is denied.
Entitlement to a 10 percent rating for left renal calculus,
based on an initial rating, is granted, subject to the law
and regulations governing the criteria for award of monetary
benefits.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2